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PAIN RELIEF PROMOTION ACT (HR2260)

WRITTEN TESTIMONY OF PHYSICIANS FOR COMPASSIONATE CARE TO UNITED STATES SENATE JUDICIARY COMMITTEE

APRIL 25, 2000

SUMMARY STATEMENT

Physicians for Compassionate Care, an organization providing education about pain relief and palliative care, urges passage of the Pain Relief Promotion Act. This testimony provides new information to supplement and update oral and written testimony to the U.S. House Judiciary Subcommittee on the Constitution, June 24, 1999. This new information falls into two categories. First, since hearings last June, the American Medical Association held intensive and comprehensive discussions before its entire House of Delegates, including representatives from the whole field of medicine. These meetings and subsequent negotiations thoroughly addressed all concerns raised by detractors of the Pain Relief Promotion Act. Second, new examples of the misuse of federally controlled substances for assisted suicide and euthanasia in Oregon have surfaced. These cases reveal failure to protect the mentally infirm and those under pressure from their families, involvement of health maintenance organizations in assisted suicide, failed assisted suicide attempts, and involuntary euthanasia in the hospice setting. These abuses make it increasingly clear that allowing the use of federally controlled substances for assisted suicides constitutes a public danger.

ANY LEGITIMATE MEDICAL CONCERNS ABOUT THE PAIN RELIEF PROMOTION ACT HAVE BEEN ADDRESSED

Widespread agreement exists, even among those not initially favoring the Pain Relief Promotion Act (PRPA), that funding for improved education and research about pain treatment and palliative care is much needed. Yet, while admitting that assisted suicide is not a medical procedure, that it constitutes a public danger, and that it should not be allowed, some detractors of the Pain Relief Promotion Act still claimed last fall that this bill might create new authority for the Drug Enforcement Agency (DEA) and might create new penalties for physicians, thereby having a hypothetical "chilling effect" on the provision of pain treatment and palliative care. A second concern raised by some critics of the PRPA was that it might somehow alter the balance of federal and state authorities in the regulation of controlled substances and the practice of medicine. Aggressive promotion of such fears by those favoring assisted suicide led to further consideration by the American Medical Association (AMA) of its position supporting the PRPA. This time, the discussion took place in a full debate of the entire House of Delegates -- the highest decision making body of the organization -- resulting in clear reaffirmation of support for the Pain Relief Promotion Act. Physicians for Compassionate Care played a prominent role in these discussions. Reaffirmed support was followed by the negotiation of and agreement upon proposed new wording to reassure those few remaining critics that the Pain Relief Promotion Act creates no new authority of the DEA and does nothing to alter the roles of the federal and state governments in the regulation of controlled substances.

The House of Delegates of the AMA, in that it has representatives from virtually all specialty societies and numerous other medical groups, both large and small, as well as from the state medical societies, represents 95% of practicing physicians in America. Even physicians who are not delegates to the AMA can have their voices heard at this meeting. Among all those who testified, there were no concerns about the Pain Relief Promotion Act raised other than these two -- fear of a theoretical "chilling effect" and speculation about roles of federal and state government in the regulation of the practice of medicine.

Data presented at those meetings and among physicians across the country made it abundantly clear that those few states that have enacted laws similar to the Pain Relief Promotion Act showed no "chilling effect." On the contrary, per capita use of morphine, increased. In Rhode Island, for instance, the per capita morphine use more than doubled after a similar law was passed. While per capita morphine use figures do not accurately reflect the adequacy of pain treatment, they do reflect levels of physician comfort in prescribing controlled substances. Close examination of the PRPA also showed that fears of new penalties were entirely unfounded, because the Pain Relief Act creates no new penalties. In fact, it provides new protection for physicians against existing penalties by making it perfectly clear, for the first time, what has always been true in medicine -- that aggressive pain management can be appropriate medical care even if in rare instances it might inadvertently increase the risk of death. It was also pointed out that wording had already been read into the record of the United States Congress by the authors of the Act late last fall, clarifying that the PRPA is not intended to create any new authority for the DEA. This careful examination of available data and of the Act itself showed that the fears of any possible "chilling effect" were entirely unfounded.

While it became very clear that the Pain Relief Promotion Act provided new protections for both physicians and patients, a few continued to harbor doubts concerning the roles of the federal and state governments. These concerns were addressed through lengthy discussions and the proposal of additional wording that clarifies that the Pain Relief Promotion Act shall not be interpreted to alter the balance of the state and federal governments in the practice of medicine and the regulation of controlled substances. Now, the remaining few critics of the bill have been reduced to somewhat inconsistently arguing both that the Pain Relief Promotion Act may not give doctors enough protection and that it may give them too much protection. Careful consideration by the deliberative bodies of the field of medicine, however, have determined that a proper balance, which optimally protects both doctors and patients, has been achieved.

Virtually all the issues and fears raised now have been thoroughly studied and discussed and addressed with due deliberation to the satisfaction of the vast majority of physicians, even among those who initially may have harbored any concerns. The important details have been carefully addressed and settled. Yet, in the meantime, innocent patients in Oregon have continued to die untimely deaths through the administration of lethal doses of federally controlled substances using federal DEA licenses, instead of for appropriate pain treatment and palliative care. How many more American citizens will be given deadly doses of federally controlled substances using federal DEA licenses, before this enlightened piece of legislation is enacted, clarifying that federally controlled substances are to be used for pain treatment and palliative care, not for lethal overdoses?

NEW CASES CONFIRM THE PUBLIC DANGER OF ASSISTED SUICIDE

No Protection for the Mentally Infirm

Previous testimony (June 24, 1999) by Physicians for Compassionate Care demonstrated how allowing the use of controlled substances for assisted suicide led to the first publicly reported case of legalized assisted suicide in Oregon being given a lethal overdose instead of treatment for her depression, despite the well documented fact that she had been diagnosed as depressed. Since that time, another case, this time a woman with dementia under pressure from her family was given assisted suicide by her health maintenance organization (HMO) doctor using federally controlled substances.

Mrs. Kate Cheney was an elderly, Oregon woman with growing dementia and the diagnosis of a potentially terminal cancer (Barnett, 1999; Smith, 1999; Hamilton, 2000). When her daughter accompanied her to her doctor's appointment to formally request assisted suicide, the doctor did not agree with that course of action. It was the daughter (Barnett, 1999), not the patient, who then insisted the mother have a new doctor within her HMO, Kaiser Permanente. The doctor change for the mother was granted to the daughter.

This second doctor was willing to give Mrs. Cheney assisted suicide and arranged for psychiatric for evaluation, because it was standard at this HMO in its assisted suicide procedure. The psychiatrist, who released a written report to the newspaper, found that Mrs. Cheney had short-term memory deficits and dementia. The assisted suicide request appeared to be the daughter's "agenda" (Barnett, 1999). The daughter who also accompanied Mrs. Cheney to this appointment, "coached her" in her answers, even when the psychiatrist asked her not to do so. Concerning the patient, the psychiatrist observed, "she does not seem to be explicitly pushing for this" (Barnett, 1999). She was deemed lacking sufficient capacity to weigh options about assisted suicide; thus, she was not eligible for doctor-assisted suicide.

The patient accepted this assessment. Her daughter, however, "became angry" (Barnett, 1999). It was the daughter, not the patient, who then "decided on a second competency evaluation" (Barnett, 1999). Kaiser HMO apparently authorized this second off-panel mental health evaluation. This new psychologist admitted the patient could not even remember when she was diagnosed with terminal cancer, although it had only been within the last three months. She also wrote that the patient's "choices may be influenced by her family's wishes and her daughter, Erika, may be somewhat coercive"(Barnett, 1999). Nevertheless, she approved the assisted suicide.

With two conflicting mental health opinions, the final decision came down to yet another Kaiser HMO doctor-administrator, Robert Richardson, who approved giving a lethal overdose to this elderly woman under pressure from her family. Kaiser Permanente is a fully capitated HMO with a profit sharing plan for its doctors. Dr. Richardson may or may not have directly thought of the economic advantages to his organization and his own profit sharing plan in making his decision about Mrs. Cheney. Nevertheless, the existence of an economic incentive program put in place purposefully to induce doctors to reduce medical costs, an incentive system that in this case favored doctor- assisted suicide over expensive medical care, did exist and should be noted.

The problems with this well documented case in Oregon (Barnett, 1999; Smith, 1999; Hamilton, 2000) were not reported in the Oregon Health Division (OHD) report (Sullivan et al., 2000). And psychiatric evaluation served no protective function for her, since an opinion protecting her against assisted suicide, merely prompted the daughter, not the patient, to search for another opinion.

Outside pressure or influence for assisted suicide is not at all uncommon, once assisted suicide becomes legalized. In fact, in the Netherlands, over half the doctors feel it is fine to actually suggest to a patient who has not requested it that assisted suicide may be appropriate for them (Hendin et al., 1997). Numerous cases of patients under family pressure to commit assisted suicide have been recorded in the Netherlands (Canady, 1996). As the Cheney case illustrates, these kinds of pressures are already appearing in Oregon. For these and other reasons, use of federally controlled substances for assisted suicide presents a public danger.

Assisted Suicide Inevitably Expands to Include Involuntary Euthanasia

Five seriously ill patients in a Sheridan, Oregon, hospice were given excessive doses of a federally controlled substance, morphine, by Michael J. Coons, between November 1997 and January, 1998, just after the Oregon assisted suicide law was implemented, according to criminal investigators (Tims, 2000a). The overdoses resulted in the deaths of four of the five patients. Some patients were determined by investigators to have refused pain medication and were given it nonetheless. Another was given repeated narcotic doses when he was unconscious or unresponsive (Tsao, 2000). The one woman who survived had been placed on hospice, which meant that she had been determined to be "terminally ill" and to have less than six months to live, by the nurse who eventually gave her a life threatening overdose. She turns out not to have met criteria for "terminal illness" after all, because two years later, she is still alive. Her experience with the attempts to kill her with a lethal overdose of federally controlled substances, however, have undermined her trust in the medical care system and at night she now makes sure the door to her room is always locked (Tims, 2000b). The other four patients did not live to struggle with their fears.

In Oregon, where the lives of the seriously ill have been devalued by the acceptance of giving some patients deadly overdoses of federally controlled substances, there was an inordinate delay in the investigation of these cases. Complaints were dismissed by agency after agency, until the persistence of the daughter of one of the victims, finally succeeded, one-and-a-half years later, in demanding an inquiry (Tims, 2000b). The daughter of the single survivor said she did not know about the overdose of her mother until it was published in the newspaper, two years later. She was outraged (Tims, 2000a).

Erosion of the conditions of trust in the doctor-patient relationship has already begun in the state of Oregon, as has already happened in the Netherlands. While some supporters of legalized assisted suicide using federally controlled substances might wish to argue that the overdosing of these five hospice patients was an aberration resulting from a single deranged individual's action, there is considerable statistical evidence to the contrary. Once assisted suicide using controlled substances is allowed in some circumstances, individual medical personnel increasingly interpret that acceptance as approval of other kinds of killing in the medical setting.

In the Netherlands, where doctor-assisted suicide has been allowed longer than in Oregon, it has been clearly demonstrated that killing in the medical setting moves from doctor-assisted suicide to active euthanasia, from the terminally ill to the chronically-ill, from voluntary to non-voluntary (Canady, 1996). For each voluntary assisted suicide in the Netherlands, there are more than twice as many cases of involuntary euthanasia. As the U.S. Supreme Court observed, "The Dutch government's own study revealed that in 1990, there were 2,300 cases of voluntary euthanasia (defined as 'the deliberate termination of another's life at his request'), 400 cases of assisted suicide, and more than 1,000 cases of euthanasia without an explicit request. In addition to these latter 1,000 cases, the study found an additional 4,941 cases where physicians administered lethal morphine overdoses without the patient's explicit consent" (U.S. Supreme Court, 1997). It is not surprising, then, that such expansion of assisted suicide using federally controlled substances to the area of involuntary euthanasia is already becoming apparent in Oregon.

State Monitoring is Ineffective

The Oregon Health Division (OHD) review of 1998 reported cases of assisted suicide, all of whom received lethal overdoses of federally controlled substances, was particularly criticized because of "its failure to address the limits of the information it has available, overreaching its data to draw unwarranted conclusions" (Foley and Hendin, 1999). The report's declaration of a lack of problems was clearly unwarranted. The first publicly reported case of assisted suicide was noted to have been diagnosed with depression, yet the report failed to reveal this fact. Neither did the report mention that same woman mentioned that concerns about finances were one motivating factor in her decision for assisted suicide. The OHD apparently overlooked these problems and other problems, because it only interviewed the doctors who prescribed the lethal drugs and who therefore had a vested interest in justifying their recent behavior.

Since that time, OHD has issued a second report (Sullivan et al., 2000) with similar unwarranted reassurances based upon similar methodological shortcomings (Hamilton, 2000). This year, the OHD also interviewed some family members, but those family members were chosen by the assisted suicide doctors themselves and were also motivated to justify their recent behavior. The patients themselves were never interviewed by OHD prior to their being given overdoses of controlled substances; neither were the medical records systematically examined, with due consideration for patient confidentiality, by outside researchers.

There is solid evidence that not all the cases were reported. At least one assisted suicide attempt resulted in such disturbing symptoms that the family called 911 (Hamilton, 2000). The patient was taken to the hospital and resuscitated. This case apparently was never reported. This instance when a known failed assisted suicide case was not reported suggests that there is skewed reporting with complications being hidden. Assisted suicide and euthanasia advocate, Dr. Sherwin Nuland (2000), cast doubt on the credibility of the Oregon report when he observed that a Dutch report in the New England Journal of Medicine indicated 18% of assisted suicide attempts needed to be ended with lethal injection, usually due to complications (Groenewoud et al., 2000), yet the OHD insisted it has yet to find a complication.

The OHD also failed to mention documented dementia in the Kate Cheney case, similar to its failure to mention the diagnosis of depression in the first publicly reported case that should have been discussed in the first report. It did not mention known multiple or conflicting mental health opinions. It only mentioned that 10 of 27 cases were referred for such evaluations, but said nothing about the results.

Neither did the OHD report that there were any instance of family pressure or coercion, despite the fact that two mental health professionals were known to have found such factors present in the Kate Cheney case. It is not known in how many other cases such pressures may have played a part.

Concerning the issue of economic pressures, OHD only asserted that all the assisted suicide cases were insured. It provided no information about what the financial arrangements of the insurance companies might be. It did not mention the capitated and profit sharing plan of Kaiser HMO where Mrs. Cheney died. It did not mention the rationing of health care and the barriers to mental health care in the Oregon Health Plan (described in previous testimony, June 24, 1999) and upon which four cases had to rely. And, it said nothing about how many patients belonged to HMOs which put limits on payments for in-home palliative care at very low amounts, yet fully fund assisted suicide, as Qual Med HMO is reported to do. Instead of gathering useful information, the OHD once again overreached its data and provided unsubstantiated reassurances.

This inability to monitor and control assisted suicide using federally controlled substances with federal DEA registrations, once it is legalized, further demonstrates the public danger of allowing use of federally controlled substances for giving lethal overdoses to American citizens.

Assisted Suicide Expands to Include Legalized Lethal Injection

In previous testimony, the case of Patrick Matheny's failed assisted suicide attempt was described. Mr. Matheny was a man with amyotrophic lateral sclerosis (ALS), who received through the mail a huge quantity of barbiturates prescribed by an assisted-suicide doctor (Barnett, 1999). After two attempts at swallowing the contents of the large number of capsules failed, because of his medical condition, his brother-in-law said he "helped" him die and complained that Oregon's suicide law discriminates against those who cannot swallow. The body was cremated within a day; consequently, no autopsy could ascertain the cause of death. Doctors and other citizens demanded that the prosecutor investigate the death, because illegal suffocation of the patient has been the most frequent method of "helping" patients die when assisted suicide attempts fail.

In response to inquiry, Oregon's Deputy Attorney General issued an opinion indicating that lethal injection may need to be accepted once assisted suicide is accepted, because Oregon's assisted suicide law does not provide "equal access" to its provisions by disabled people who cannot swallow and may violate the Americans with Disabilities Act. The important legal implication of such failed assisted suicide cases is that they are bound to bring in lethal injection. That is what has happened in the Netherlands (Canady, 1996; Hendin et al., 1997). That is the dilemma prominent euthanasia proponent, Dr. Sherwin Nuland (2000), raised in the New England Journal of Medicine -- if doctors are going to start carrying out assisted suicides, they will need lethal injection to finish the job -- and lethal injection clearly gives power and control to doctors, nurses, and health care systems, not to the patient. And that is what is being brought up already by Deputy Attorney General David Schuman in Oregon.

The United States Supreme Court, as discussed in its 1997 decision, Washington et al. v. Glucksberg, stated "...it turns out that what is couched as a limited right to 'physician assisted suicide' is likely, in effect, a much broader license, which could prove extremely difficult to police and contain." The inevitable progression to lethal injection, which occurred in the Netherlands, is already occurring in Oregon.

CONCLUSION

The need for improved education and research to promote pain and palliative care is overwhelming. The Pain Relief Promotion Act makes provision for improving such education and research about pain treatment and palliative care. It clarifies to physicians, nurses, and state medical boards, as well as to law enforcement personnel, that provision of pain medicine is a legitimate medical practice, even if in rare instances there may be an added risk to a patient's life. Since previous testimony presented by Physicians for Compassionate Care, June 24, 1999, any legitimate concerns about a hypothetical "chilling effect" or change in the balance of federal and state jurisdictions in dealing with controlled substances have been alleviate.

During the same time interval, patients in Oregon have continued to die untimely deaths, being given lethal overdoses of federally controlled substances instead of pain treatment and palliative care they deserve. There has been the revelation of yet another case of a mentally infirm woman not being protected against assisted suicide in an HMO and under pressure from her family. There have been reports of assisted suicide expanding to the practice of involuntary euthanasia in the case of hospice patients. And there have been failed assisted suicide attempts, resulting in a call for introduction of more sure methods of ending the lives of vulnerable patients, that is, lethal injection. These cases and the failure to report any of these documented tragic cases in official reports make it clear that allowing the use of controlled substances for assisted suicide creates a public danger.

There already have been too many deaths of American citizens caused by overdosing vulnerable patients with dangerous federally controlled substances. It is time to stop the killing of American citizens using federal DEA registrations to prescribe federally controlled substances for lethal overdoses instead of for needed pain treatment and palliative care. Physicians for Compassionate Care urges you immediately to pass the Pain Relief Promotion Act.

Respectfully submitted,

N. Gregory Hamilton, M.D.
2250 N.W. Flanders, # 306
(503) 226-0558

REFERENCES

Barnett, E.H. (1999a). "Is Mom Capable of Choosing to Die?" Oregonian, October 17, 1999, G1&2.
Barnett, E.H. (1999b). "Man with ALS Makes up his Mind to Die." Oregonian, March 11, 1999, D1.
Canady, C.T. Physician Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady to the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d, 10-11 (Comm. Print 1996)
Foley, K. and Hendin, H. (1999). "The Oregon Report: Don't Ask, Don't Tell." Hastings Center Report 29:37-42.
Groenewoud, J.H. et al. (2000). "Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands." New England Journal of Medicine 342:551-556.
Hamilton, C. (2000). "The Oregon Report: What's Hiding Behind the Numbers." Brainstorm, March, 2000, pp. 36-38.
Hendin, H. et al. (1997). "Physician-Assisted Suicide and Euthanasia in the Netherlands: Lessons from the Dutch." Journal of the American Medical Association 277:1720-1722.
Nuland, S.B. (2000). "Physician-Assisted Suicide and Euthanasia in Practice, New England Journal of Medicine 342:583.
Sullivan, A.D. et al. (2000). "Legalized Physician-Assisted Suicide in Oregon -- The Second Year," New England Journal of Medicine 342:598-604.
Smith, W.J. (1999). "Suicide Unlimited in Oregon." Weekly Standard, November 8, 1999, pp. 11-14.
Tims, D. (2000). "Sheridan Patient Recalls Ordeal," Oregonian, March 26, 2000, A1.
Tims, D. et al. (2000). "Hospice Faces Inquiry after Four Deaths." Oregonian, March 16, 2000, A1.
Tsao, E. (2000). "Some Patients Who Died Refused Morphine, Records Show." Oregonian, March 26, 2000, A10.
United States Supreme Court, Washington v. Glucksberg, 1997. 
 

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